Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays

from the the-no-copyright-offense dept

The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market. The idea is that, without such protectionism, no one would bother innovating, because they'd know that others would immediately copy them. This was based on theory, however, and tragically, many people have continued to assume this theory must absolutely be true. As we've noted in the past, it's this odd "faith-based" approach to copyright law. That's a problem, because every bit of evidence suggests this theory is simply not true. Every time we look at creative industries where there is no or little copyright protection, we seem to find an awful lot of innovation and creativity, where the theory would suggest it doesn't make sense for that to happen. In fact, when we've compared industries across countries where one country has copyright protection and the other does not, those without copyright tend to be bigger, more innovative and more creative.

In the past, we've looked at how the fashion industry, the restaurant industry, the stand-up comedy industry, and even the magician industry all seem to be incredibly creative and thrive without copyright protection. Now, Kal Raustiala and Chris Sprigman, who have been studying this same topic for a long, long time, are highlighting the same thing in an area you might not have considered: football plays. Yes, football plays -- which are not copyrightable. As they note, American football has been filled with creative innovation when it comes to new plays. And, while the faith-based "theory" of copyright suggests that no team would innovate because others would just copy them, reality has shown quite the opposite. Raustiala and Sprigman go through a series of innovations, from the forward pass, to the "west coast offense" to the "zone blitz" to the "no huddle offense" to the "spread offense." Each were massive innovations that effectively changed the game.

As they note, each time there was a new innovation, it was met with "contempt," as others accused teams of "cheating." And, yet, over time, each of these innovations spread across the league, as teams copied them and continue to innovate as well. They point out that someone even did try to copyright a football formation once (comparing it to dance choreography -- which is copyrightable). Raustiala and Sprigman point out that, despite the fact that such plays aren't copyrightable, there's still so much innovation. One key point they make, is that this is an area where a first mover advantage is quite important. Of course, that applies in many other industries today as well.

Towards the end, they make a key point about economic theory, that's absolutely worth sharing:

Finally, the story of innovation in football is tied to a much deeper debate in the economics of innovation. Economists today disagree about the conditions most conducive to innovation. Some, following the ideas of Joseph Schumpeter, maintain that innovation requires shelter from competition -- the firm in a competitive market is hard-pressed to focus on anything but the short-term, and because profits are limited by competition, may lack the resources to innovate. Other scholars, following the lead of Nobel laureate Kenneth Arrow, argue that innovation is best fostered by sharp competition -- firms struggling for any advantage over their rivals are forced to innovate or die. This divergence in views has hardened into a Schumpeterian vs. Arrovian standoff -- and the state of the evidence does not allow us to fully understand yet which view is right.

Intellectual property law, however, is essentially Schumpeterian. The theory of patent and copyright is that by sheltering innovators from competition -- that is, by prohibiting copying of the innovation -- we encourage innovation. But perhaps the Arrovians are right. Football, for example, illustrates innovation occurring in the midst of cut-throat competition. And football doesn't stand alone. Some of the other creative industries we've described, such as fashion and food, look like Arrovian innovators as well.

This is a perfect summary of many of the debates around here (and reminds me why I've never been a fan of Schumpeter and keep one of Arrow's texts on the economics of information on my desk at all times). It also explains why I have so much trouble with today's intellectual property law. It completely assumes a Schumpeterian view on the world, when a significant amount of evidence suggests Arrow's view is the correct one. The one point where I disagree with the statement is the idea that the evidence is not compelling enough in one direction. The more you look, the more it seems to suggest that Arrow is absolutely right on this one, and Schumpeter is -- as with many of his insights -- compelling and thought-provoking, but slightly off in the all important details.

Hum, interesting. Actually, this kinda of ties in nicely with a creationism vs evolution argument.

Schumpeterians believe what could be seen as a form of creationism: they believe that only a powerful entity is capable of creation (innovation).

Arrovians essentially believe in evolution: companies, faced with competition, are forced to innovate (evolve) or die.

It now goes down to what you believe in: the faith based system or the one rooted in the laws of nature? Personally, I think nature holds the answer to most human problems (we are part of it after all), therefore, I'd have to go with evolution.

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Exploding Creativity.

Let's watch that wording, or next thing you know creativity will be put on the WMD watch list... creative people rounded up as potential terrorists... the bomb squad being called every time a creative art piece is discovered...

The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market. The idea is that, without such protectionism, no one would bother innovating, because they'd know that others would immediately copy them. This was based on theory, however, and tragically, many people have continued to assume this theory must absolutely be true. As we've noted in the past, it's this odd "faith-based" approach to copyright law. That's a problem, because every bit of evidence suggests this theory is simply not true.

I've studied a lot of copyright theory, Mike, and I am certain that you are not correct about this. I've NEVER seen it argued that the government-granted monopolies are NECESSARY. The argument is that they are SUFFICIENT. Can you point me to one source of authority to back up your assertion that the theory says such monopolies are sine qua non to innovation? The fact that you think this makes your understanding of copyright theory very suspect, IMO.

Re: Exploding Creativity.

what would dictate 'creative' i wonder? my kid creating a drawing of a duck out of macaroni? naw. every kid does the macaroni thing once or twice, but that neighbor kid used fusilli! what kid uses fusilli! he's obviously a terrorist.

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Depends on what you consider an "authority". There have been hundreds of articles on this site about Hollywood and music execs screaming about "starving musicians" and the death of the music industry if copyright isn't held absolute.

The entire core the lobbying and "education" campaigns is "without copyright, the industry is destroyed".

Football (NFL as depicted) *IS* sheltered from competition.

This feeble trivia at best proves that "government-granted monopolies" do work, because that's the full context. But "competition" on how to best play a game has *zero* larger implications. And anyone who finds "creativity" in the limited arena of football plays is just *desperate* for escapism.

innovation vs restraint

Even if you follow the follow the ideas of Joseph Schumpeter, maintain that innovation requires shelter from competition -- the firm in a competitive market is hard-pressed to focus on anything but the short-term, and because profits are limited by competition, may lack the resources to innovate., the current IP law deviates from thos ideas by extending the monopoly far beyond the period necessary to gather the resources to innovate.
I would go further to propose that current IP law in fact discourages innovation by providing incentives to maximize margins by reducing innovation expenses once the product has reached a 'good enough' stage.

Football is actually a good example to use for creativity and business.

Vice Lombardi once said he didn't care if the other team knew what they were doing because if his team executed perfectly, they couldn't stop it anyway. The Bengals were the first team to use the no huddle offense, but they didn't have the talent or execution for it to make that much of a difference. Other teams picked it up and do quite well.

McDonals competitors know exactly what they do, but they can't quite seem to beat them. The key is knowing what you are good at, focusing on that and executing on it. Sounds basic, but that is pretty much what every company needs to do. Very few companies actually execute well, and some don't even know what they are good at.

Re: Football (NFL as depicted) *IS* sheltered from competition.

You are right, Randy Moss blocking for Wes Welker is not in the same competition as lets say, Modonna's "Like a Prayer" however let me give you an example that better explains what you are saying.
I have this apple here. It look like, tastes like, smells like and orange, even comes from an orange tree, but its an apple for the sake of this example. And here is an Apple. It looks like an apple, it tastes like and apple, it even grows on an apple tree. in no way is it different than the other apple I was talking about before. Right?
See what I did there? you can't compare innovation in the world of fishing with innovation in the world of music. They are not in the same competition. So why is it you feel you need to compare the innovation inside the NFL to innovation outside the NFL? Anything NOT inside the NFL is in its own sheltered area away from other areas. Innovation in cars wont matter to an Amish family, an innovation in their process in building a barn might, but that barn building innovation wont have any sway on the automobile industry.

So go ahead and stipulate that protection from competition is necessary to encourage innovation (stipulate, not agree). How long should that protection last? Life of creator + 70 years? If they haven't managed to reap the reward of their innovation in a much shorter time (5? 10? years), then let's see if someone else can do something with it.

Interesting . . . but, relevant?

It's not like there's a market for football plays in the same sense that there's a market for other mainstream copyright-ed/able works like books, music and movies. The football play is a means to an end - that of scoring more points than the other team.

I guess one might patent a football play...

In any case, I'm not sure these counter examples actually disprove the benefits of our current copyright/patent scheme in the US, as much as they merely demonstrate that nobody should assume that just because one might consider it to work for books and movies that it would necessarily work for other things.

I don't think you can actually disprove the utility of our IP infrastructure without actually being able to turn it off completely for some period of time to see what happens.

Re: Re: Football (NFL as depicted) *IS* sheltered from competition.

"barn building innovation wont have any sway on the automobile industry."

An this is why many companies fail. There are tons of examples where significant scientific developments were made on one area that relied on a (sometimes accidental and apparently worthless) discovery on made on a completely different area.

Example: Spider silk. Spider silk has more tensile strength than steel and many are interested in exploring this material for industrial purposes.

As you can see, industries like, perhaps the construction industry, could make use of research developed by biologists. But, according to your theory, they would have no interest in puny spider silk and much less in egghead biologists.

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Necessary or sufficient, is there a difference in the context of this article?

Generally speaking, the argument is "without copyright innovation wouldn't exist or would be severely reduced". In other words, it is assumed that copyright is sufficient because it increases innovation, but ALSO necessary because no viable alternative exists.

Mike is disputing both those claims. The lesson to take home: "in lack of copyright there is more innovation, as there is more competition without monopolies". Thus, copyright is neither sufficient (as per the Founding Fathers' writings, because instead of promoting the progress it discourages it), and it's certainly not necessary (because things work more efficiently in its absence).

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I don't see how suggesting that the theory behind copyright is that it's necessary to encourage innovation in x market is in any way misrepresentation. The entire point of copyright is that without it, such innovation or certain kinds of innovation will not happen or will be hampered as incentives won't naturally play out in how we want them to.

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Actually, the argument by authorities has never been that government-granted monopolies are sufficient, only necessary. Hence the lobby for rural electric during the middle of the last century. The monopolies gladly provided power in towns and cities, but the monopolies weren't sufficient until the taxpayers stepped in and paid for infrastructure. Most homes are on the grid today, but no thanks to the power companies. It was argued by authorities that monopolies were NECESSARY, otherwise duplication of infrastructure would be too big a price to pay.

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Oh hai average_joe, long time reader, first time commenter. Since we're talking about logic here let's get a few things straight.

One, something that is not sufficient to achieve a goal may or may not be required to achieve said goal. For example, a quarter is not sufficient to purchase an item worth one dollar.

Two, something that is more than sufficient to achieve a goal is more that what is required to achieve said goal. For example, a five dollar bill is more than sufficient to purchase an item worth one dollar.

Three, something that is sufficient to achieve a goal is the bare minimum that is required to achieve said goal. For example, one dollar is sufficient to purchase an item worth one dollar.

Therefore, anyone who argues that copyright is sufficient, is also arguing that it is the bare minimum required, which means they think it is necessary. The fact that there are other ways to protect the industry is irrelevant because supporters of copyright are supporters of copyright, not those other solutions.

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Interesting argument, but it doesn't hold water. Sufficient does not mean necessary.

Copyright can be sufficient to incentivize innovation without being necessary to do so. That's my whole point.

I was a math teacher in a past life, so let me give you an example...

Let's say my goal is to get full. I eat a whole turkey and it makes me full. You can say the turkey was sufficient. But I could also eat a whole pie and get full. So the pie is sufficient as well. Neither the turkey nor the pie are necessary to get full, since there are other ways to do it.

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Not really though. If the law is sufficient to get the job done, then that's good enough. I've never seen academics say that copyright is the ONLY way to incentivize authors. I HAVE seen it argued that it's the best way, though.

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You purposely ignored the last part of my comment. You are arguing from a food neutral point of view. Turkey supporters are turkey supporters, not pie supporters, hence they believe that turkey is necessary to make you full.

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LOL! I think you're mixing metaphors now. To go back to my analogy, they're saying that turkey gets the job done. Some people even say that turkey is the best way to get it done. What they aren't saying is that turkey is the only way to get it done.

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Re: Interesting . . . but, relevant?

I don't think you can actually disprove the utility of our IP infrastructure without actually being able to turn it off completely for some period of time to see what happens.

Sort of like the examples of other countries, that Mike has pointed out several times, which thrive with weak/no IP laws then when the US puts pressure on them (at the behest of the **IA) to create/enforce stronger IP laws, suddenly slow down the economic growth in those industries? That kind of disproval of IP infrastructure?

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I think you're half right. It is a straw man to say that copyright theory assumes proteciton is necessary( i.e., nobody would ever innovate anywhere without it).. Rather, it assumes that copyright protection is optimal, for innovation, or at least more conducive than a lack of such protection, to the type of innovation at issue.

However, I don't think most copyright theorists would say it is sufficient, by itself, to spur innovation.

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"Generally speaking, the argument is "without copyright innovation wouldn't exist or would be severely reduced"."

But there's a big difference there. If you claim the theory is that copyright is necessary (as Mike often has), then all you have to do is show *some* innovation without copyright and you disprove the theory.

If the theory is that there would be *less* innovation, then it's much harder to show whether there would be more or less in the world we have or the hypothetical world without copyright.

Re: Re: Re: Interesting . . . but, relevant?

Re: Interesting . . . but, relevant?

It's not like there's a market for football plays in the same sense that there's a market for other mainstream copyright-ed/able works like books, music and movies. The football play is a means to an end - that of scoring more points than the other team.

Just as writing a book or music or movies is a means to an end as well.

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Mike is disputing both those claims. The lesson to take home: "in lack of copyright there is more innovation, as there is more competition without monopolies". Thus, copyright is neither sufficient (as per the Founding Fathers' writings, because instead of promoting the progress it discourages it), and it's certainly not necessary (because things work more efficiently in its absence).

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This is certainly different than what you were saying above. Copyright theory doesn't say that copyright is the only way to incentivize innovation. So when you find an example of innovation that was incentivized without copyright, you're not disproving copyright theory.

The real debate, I think, is whether copyright is the best way to incentivize innovation.

Sports depends on leveling the playing field

The reason copyright wouldn't work in football is that the league depends on the various teams to be as equal to each other as possible. If one team came up with a winning strategy and other teams were prevented from copying it, then there wouldn't be a contest, which would also end gambling (a significant force in sports). Sports require that there be the possibility of multiple winners; when it is a given that only one team or player will win, then there is no element of surprise, which decreases fan interest and creates very lopsided betting odds.

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Re: Sports depends on leveling the playing field

"The reason copyright wouldn't work in football is that the league depends on the various teams to be as equal to each other as possible."

That's not really how sports works. The playing field is supposed to be equal but the teams are all supposed to be striving to be unequal. Think of it like economics, the market is supposed to be fair but that does not preclude competition. Given the analogy you have to ask why is copyright 'good' for everyone but footballers.

On the surface at least, it seems a remarkably socialist system for a profit-orientated American sports league to have in place. Money and talent is spread around equally to ensure that there is a healthy equality. ...

Indeed the draft system is almost a little welfare-state style form of assistance."

I would love to see an anti trust challenge to the whole draft system in professional sports. You could say that the draft is handled by the collective bargaining system, but then again, the people it affects didn't sign the CBA.

Imagine if tech companies held a draft of the best college grads and then told them how much they could make and where they had to live. Oh, that is right, the courts just slapped a few tech companies for not poaching each others executives.

Imagine if the Big 4 accounting companies held a draft for the top accounting grads every year? Think that would go over?

An Ohio State RB was actually going to challenge this but he was thrown in jail for something or another.

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I would love to see an anti trust challenge to the whole draft system in professional sports.

I actually see the current NFL and NBA systems as comparable to anti-trust legislation. If one team gains an unfair advantage, the league officials rejigger the rules to create parity again. So it's like forcing AT&T to spilt up into regional companies.

OXYMORONS,...

"... government-granted monopolies are necessary to encourage innovation in a market. The idea is that, without such protectionism, no one would bother innovating, because they'd know that others would immediately copy them."
1/ Monopolies and innovation don't really happen in the real world, not together anyway.
2/ Brilliant minds will innovate, protected or otherwise. Someone once said innovation is like sex, protect it and you remove the whole point!
3/ If someone copies your idea, it was good one. If they do it cheaper, your business model is rubbish.
4/ And finally, put the word 'government' in anything with innovation and all you get is FUBAR!

Suzanne, I understand the competitive aspects of this but where do the rights of the individual to work where they want come into play? I understand that you are talking about highly compensated individuals but then again, so are Silicon Valley executives and the courts didn't agree that the companies could agree not to poach each other.

One could say that no one is forcing them to play professional sports but one could say the same about being an accountant or programmer also.

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Sports: The Concise Encyclopedia of Economics | Library of Economics and Liberty: "By their very nature, sports leagues are cartels that exclude competition from other companies. You cannot start a baseball team and hope to play the Yankees unless you can get Major League Baseball (the cartel) to grant you a franchise. The antitrust laws prohibit cartels, but professional sports is the only private business in the United States that is largely exempt from those laws. Ever since a 1922 court decision (Federal Baseball Club of Baltimore v. National League et al.), baseball has been totally exempt. No other sport enjoys such a blanket exemption from antitrust, but all professional team sports have a labor exemption and, since the Sports Television Act of 1961, a broadcast exemption."